ELL

The short answer is “probably not.” Which deserves a better explanation.

Over 100 years ago a worker injured on the job had few effective legal remedies. Common law doctrines showed hostility to workers who would dare sue their employers.

Over time, Oregon eventually adopted a means of providing relief to injured workers by creating a workers’ compensation system. The workers’ compensation system provides healthcare, partial reimbursement for lost wages, permanent disability awards and retraining.

But it came with a cost – the workers’ compensation system is a no-fault system and the exclusive remedy for work claims. This means that it does not matter who caused the injury, the only thing that matters is whether a worker was injured. This is the reasoning behind why negligence claims are generally barred, because fault is not considered. The practical effect of this is that workers cannot recover non-economic damages, such as pain and suffering, through a neglience claim.

However, the Oregon Supreme Court considered the constitutional implications of such a system in Smothers v. Gresham Transfer, 332 OR 83 (2001). In that case a worker brought a negligence suit against his employer for a disease condition allegedly due to exposure of toxic compounds at work after he had failed to prove in a workers’ compensation claim that his work exposure was the major contributing cause of his condition. The Supreme Court held that the worker’s claim was not barred because the workers’ compensation system left the worker with no remedy by due course of law for harm caused by the employer’s negligence. This ruling allows for challenges by injured workers, but the circumstances needed for such a challenge are rare.

While an injured worker usually cannot sue their employer for negligence, they can sue a third-party. A third-party claim is one in which a subject worker sustains an injury due to negligence or wrong of some person or corporation who is not the employer nor a subject worker of the injured worker’s employer. These claims usually stem from car accidents, medical malpractice and products liability. Also, every work accident site has the potential to be an employment liability law claim. All of these claims are potentially beneficial for an injured worker and should be considered by an attorney in order to obtain complete recovery. I’m planning on using future blog posts to explain the complicated world of third-party claims more.

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